The Colorado Supreme Court ruled yesterday that phone log records related to calls the governor makes on his private cell phone, including calls related to government business and made during work hours, are not subject to disclosure under the state's public records laws.
In 2008, The Denver Post requested access to the phone records of former Gov. Bill Ritter under the Colorado Open Records Act. In response, he turned over bills for his state-paid Blackberry, but refused to turn over his personal cell phone records.
In a 4-2 decision, the state Supreme Court ended the three-year battle by ruling the public does not have a right to inspect Ritter’s personal cell phone records after the Post failed to show they are public records, defined in Colorado as "writings made, maintained, or kept by the state […] for use in the exercise of functions required or authorized by law."
“The Post did not allege facts showing that he kept the personal cell phone bills in his official capacity and the burden did not shift to the Governor to demonstrate the phone bills are not a public record under CORA,” Justice Gregory Hobbs said in the majority opinion.
The Post argued the governor predominantly used his personal cell phone throughout the week to make and receive calls relating to official matters, according to court documents. However, the court found the records are not public because the governor paid for the phone himself without reimbursement from the state, kept the billing statements only for payment purposes and did not turn the bills over to any state agency.
Open-record advocates said the decision could have widespread implications because officials can use private phones to discuss matters they want to keep off-the-record.
Steve Zansberg, an attorney with Levine Sullivan Koch & Shulz L.L.P who represented The Denver Post in the case, said he and his client are “tremendously disappointed that the majority has taken such a narrow view of the open records act.”
“The open records law is supposed to be construed broadly to maximize the public's ability to monitor official conduct of public servants,” he said in a statement. “These are, after all, the people's records.”
The governor’s phone carrier compiled monthly records for his private cell phone, which included about 10,000 calls listing basic information such as the date and length of the conversation, though the records excluded the content of the messages and names of those he spoke with.
The Post sued after being denied, arguing records of phone calls related to public matters and kept by a public official should be open to inspection.
“It is obvious that if any high-ranking government executive may ‘privatize’ his conduct of public business by establishing a private account for dealing with private providers of communications technologies, it would allow government officials to unilaterally create a vast and unacceptable ‘loophole’ in the requirement of CORA," the Post's lawyers said in the lawsuit.
The court maintained it made its decision based on the wording of current statutes.
“Whether or not disclosure of the Governor’s personal cell phone bills might be desirable as a matter of public policy, the complaint simply fails to state a claim that is cognizable under the current governing statutes and our case law,” the decision said. “Should the General Assembly decide to expand the applicability of CORA, it is free to do so."
Zansberg said he anticipates there may legislation in response to the ruling.
Justices Nancy Rice and Allison Eid dissented from the majority opinion. Rice said the ruling ignored the legislature's attempt to ensure broad transparency.
"The majority creates an incentive for public officials to shield records of phone conversations about official business by intermingling them with records of personal calls, essentially affording the opportunity to purchase an unwritten exception to CORA for the price of a monthly cell phone plan," Rice said.
The Reporters Committee for Freedom of the Press, joined by 10 additional media parties, filed a friend-of-the-court brief in the case.